There is a long tradition of grand jury secrecy in the United States. The Indiana General Assembly codified this tradition many years ago, with the most recent codification found at IC 35-34-2-4(i). According to legal scholars, one of the grand jury's most important characteristics is the secret nature of its proceedings. The origins of grand jury secrecy can be traced to 17th century England--the grand jury's secret nature arose from a need to maintain its independence from the government (i.e., the king). Legislating New Federalism: The Call for Grand Jury Reform in the States, 58 Okla. L. Rev. 341 (2005).

In more modern times, the policies protected by grand jury secrecy have been set forth as "preventing the escape of those who may be indicted, preventing attempts to influence grand jurors or witnesses, encouraging free disclosure by those who have information about crimes, and protecting the innocent accused who is later exonerated." State v. Heltzel, 552 N.E.2d 31, 35 (Ind. 1990) (citing United States v. Proctor & Gamble Company, 356 U.S. 677, 78 S. Ct. 983, 2 L. Ed.2d 1077 (1958)).

Under Indiana's statute, "grand jury proceedings shall be kept secret, and no person present during a grand jury proceeding may, except in the lawful discharge of his duties or upon written order of the court impaneling the jury or the court trying the case on indictment presented by the grand jury, disclose: (1) the nature or substance of any grand jury testimony; or (2) any decision, result, or other matter attending the grand jury proceedings. However, any court may require any person present during a proceeding to disclose the testimony of a witness as direct evidence in a prosecution for perjury." IC 35-34-2-4(1).

The General Assembly created an exception to the general rule of secrecy by granting trial judges the discretion to release evidence in certain circumstances where a "particularized need" can be shown. IC 35-34-2-10(b) states: "The transcript of testimony of a witness before a grand jury may be produced only: (1) for the official use of the prosecuting attorney; or (2) upon order of: (A) the court which impaneled the grand jury; (B) the court trying the case upon an indictment of the grand jury; or (C) a court trying a prosecution for perjury; but only after a showing of particularized need for the transcript."

Indiana's appellate courts have examined grand jury secrecy in several cases. In Pigman v. Evansville Press, 537 N.E.2d 547 (Ind.App. 1989), a newspaper brought an action to compel a prosecutor to disclose grand jury subpoenas for inspection. The Indiana Court of Appeals held that the subpoenas could not be disclosed because they are part of the confidential grand jury proceedings covered by IC 35-34-2-4. The court explained its opinion by stating that "the disclosure of grand jury subpoenas, revealing as they must the names of witnesses, targets, and the nature of the grand jury investigation has been consistently disallowed, since subpoenas reveal the inner workings of the grand jury." Id.

In 2003, the Indiana Supreme Court reviewed grand jury secrecy in light of a request for disclosure of grand jury transcripts in Hinojosa v. State, 781 N.E.2d 677 (Ind. 2003). In this case a police officer petitioned the trial court for production of grand jury transcripts for use in his disciplinary hearing. The Supreme Court observed that the general rule regarding grand jury transcripts is that they be kept secret and found that the particularized need exception "provides only a limited opportunity for non-prosecutorial use of grand jury transcripts in those instances where the inability to do so would result in injustice." Id at 680. The Court stated that the party seeking a determination of particularized need must file a written motion identifying the desired transcripts and an explanation of the purpose for which the transcripts are to be used. The Court also stated that the petitioner has the burden of showing that the requested transcripts are limited to materials justified by the particularized need. In considering such motions, the Supreme Court cautioned trial courts to consider "the various reasons for and public policies protected by grand jury secrecy and the applicability of the policies in the case before it when determining whether the need to prevent injustice outweighs our long-established policy of grand jury secrecy." Id at 681.

The Hinojosa court also recognized that the policies supporting grand jury secrecy for a particular grand jury proceeding may decrease with the passage of time following its conclusion, noting that the interests in grand jury secrecy do not disappear under the circumstances. According to Hinojosa, a determination of how much the secrecy interest is reduced is context specific, and in considering the effects of disclosure, "the courts must consider not only the immediate effects upon a particular grand jury, but also the possible effect upon the functioning of future grand juries. In some circumstances, the release of grand jury transcripts may discourage free disclosures by those who have information about crimes." (citingDouglas Oil Co. v. Petrol Stops Northwest, 441 U.S 211, 221, 99 S. Ct. 1667, 60 L.Ed.2d 156 (1979)).

In many circumstances, a petition for grand jury material comes before a trial court as part of a request under the public records act. Although Indiana's policy of grand jury secrecy seems to be at odds with the Access to Public Records Act, IC 5-14-3-4 states that records declared confidential by state statute are exempted from disclosure under the Act. Indiana's statute declares grand jury proceedings confidential, and according to Pigman, those records are excepted from the operation of IC 5-14-3-3. The Pigman court stated that in considering requests for records under Indiana's Public Records Act, the trial court must examine whether the document falls within one of the exceptions to the Act's general rule of disclosure. The key considerations for a trial court when reviewing a written petition for grand jury material is whether the material requested is in the nature or substance of testimony; whether the material reveals any decision, result, or other matter attending the grand jury proceeding; whether the request meets the particularized need exception; and whether disclosure of the material will have a possible effect on the grand jury.

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